‘Since its formal introduction in the Maastricht Treaty, EU citizenship has laid claim to a constitutional status. The Union Treaties – long described by the Court of Justice as the EU’s constitutional texts – explicitly confer the status of Union citizenship on all nationals of the Member States. The asserted significance of this was subsequently confirmed in the seminal Grzelczyk judgment, in which the Court famously declared that EU citizenship was ‘destined to be the fundamental status of nationals of the Member States’.’

‘Lawyers like to make as much sense as possible of the material in front of them, transforming it, if they can, from a jumble of decisions and remarks into a coherent whole. For constitutional lawyers that habit of mind is both a blessing and a curse. It is a blessing because it causes lawyers to look for subtleties others miss (albeit sometimes subtleties they themselves create). It is a curse because when the material is generated by underlying mechanisms and ideas that fundamentally conflict, it leaves lawyers at a loss, or, worse, going round in circles.’

‘This post continues the debate that has arisen following recent Parliamentary efforts to seize the initiative from the Government to avoid a no-deal Brexit, in particular the Cooper- Letwin Bill, and certain proposals that have emerged by which it is suggested the Government could thwart these efforts.’

‘Professors Gavin Phillipson and Alison Young have argued on this blog that an Act of Parliament is needed to revoke article 50. An alternative view is that, while an Act may be desirable, it is not necessary. This is still an important issue because on Wednesday 27th of March 2019, 184 votes in the House of Commons were cast in favour of revoking article 50 before ‘exit day’ if no agreement had been reached, 293 votes were cast against, and 164 MPs abstained. By contrast, 400 MPs voted against ‘no deal’. Mathematically the question of revocation remains in play, because in an emergency a positive majority of the Commons may emerge. Because an Act takes longer than executive action, the question of the legal mechanism to revoke article 50 must be scrutinised.’

‘Parliament voted on the evening of 1 April in a series of indicative votes to determine what, if any, alternative plan for withdrawal from the European Union could command the support of the House of Commons: all plans put forward again failed to command a majority. In a recent intervention, John Finnis has suggested that the government should prorogue Parliament until after 12 April in order to terminate the current parliamentary debate. Mark Elliott has offered a critique of the broader implications of this argument, namely the claim that such a course of action would be ‘(…) wholly legitimate as a matter of constitutional principle.’ Elliott concludes that parliamentary control of the process is entirely legitimate and in keeping with the British constitution. This piece adds to this analysis by elaborating why the prorogation Finnis advocates under these specific circumstances would be, as Elliott summarily puts it, ‘(…) an argument for unconstitutional action on the part of the Government.’ The piece develops a twofold argument: first, that ministerial advice tendered to seek a prorogation of Parliament under these circumstances is unconstitutional and that the Monarch should disregard it as a matter of constitutional convention; and second that holding otherwise would in effect grant the Prime Minister an unqualified veto over parliamentary business, leaving the government in an unconscionable position of power over the sovereign Parliament. Such an outcome would be fundamentally at odds with British parliamentary democracy, especially principles of democracy and representative and responsible government.’

‘The two-year time-limit in Article 50 of the Treaty on European Union has come and gone. It is now possible that no withdrawal agreement between the European Council and the UK will be concluded. This means that the UK would leave the EU in catastrophic circumstances on April 12. An interesting final irony would be that the UK would be leaving the EU on the basis of a legal howler.’

‘If the Withdrawal Agreement is approved, then Parliament will be asked to legislate to give domestic legal effect to its content through the EU (Withdrawal Agreement) Bill. One of the most significant provisions of the Withdrawal Agreement, Article 4, purports to give the entire contents of the Withdrawal Agreement special status within the UK’s constitutional order. Even though the UK would no longer be a Member State, the effect of Article 4 (if implemented) would be to give all of the laws within the Withdrawal Agreement the equivalent legal effect of EU law within a Member State. As a result, the Protocol on Ireland and Northern Ireland (the Protocol), which forms part of the Withdrawal Agreement, would be supreme over any other domestic legislative provisions, and any provisions of the agreement which meet the conditions for direct effect would have direct effect. How the UK courts would be able to enforce this status will be determined by how the UK Parliament decides to legislate to give effect to Article 4 in the EU (Withdrawal Agreement) Act. It is probable that the Government will propose to give the courts the power to disapply domestic legislation inconsistent with the Withdrawal Agreement by replicating the effect of the European Communities Act 1972 (ECA 1972). Article 4 of the WA, as explored below, already includes the obligation to disapply provisions that contravene EU law. This post looks at the questions that might be raised if a UK court was ever asked to disapply domestic legislation on the basis that it was inconsistent with the Protocol. The potential constitutional effect of Article 4 is worth considering in view of the short time that Parliament is likely to have to consider the EU (Withdrawal Agreement) Bill. While the UK courts have been able to disapply domestic legislation since the European Communities Act 1972 (this power was more more fully explored in Benkharbouche v Sec’y of State for Foreign and Commonwealth Affairs in 2017 – see Alison Young’s helpful 2017 blog post on the outcome) was enacted, what is constitutionally novel about Article 4 is the proposal that the courts would be able to do so when the UK is no longer a Member State.’

‘Earlier this month, the Supreme Court heard argument in R (Privacy International) v Investigatory Powers Tribunal. This litigation has already attracted substantial scholarly attention in the published literature (notably in articles by Paul Scott and Tom Hickman in Public Law) and online (including a symposium at the Administrative Law in the Common Law World blog). In this two-part post, I seek to situate the case in its wider constitutional context, and argue that the Supreme Court ought to abandon the narrow approach the courts have adopted so far.’

‘The CJEU’s ruling in C-621/18 Wightman and others clarifying that Member States can unilaterally revoke the withdrawal notification of Article 50 (2) TEU, is bound to have repercussions; in the case of Brexit and beyond.’

‘As each day passes, a new window seems to be thrown open exposing a fresh legal issues to be solved as the UK continues its journey towards its withdrawal from the European Union. It’s like an advent calendar for lawyers.’

‘Today the Court of Justice of the European Union delivered its judgment in Wightman. This followed the opinion of Advocate General Campos Sánchez-Bordona, concluding that the UK may unilaterally revoke its notification of its intention to leave the EU. In a similar manner to the AG, the CJEU placed conditions on this unilateral revocation. A formal process would be needed to notify the European Council of the UK’s intention to revoke article 50. Such notice of revocation would have to be unequivocal and unconditional (para 74), and, importantly, ‘in accordance with the constitutional requirements of the Member State’, in this case, the UK, and following a ‘democratic process’ (para 66). It would also have to take place before the end of the Article 50 negotiation period, or any agreed extension, and before a Withdrawal Agreement between the exiting state and the EU had been ‘concluded’ – i.e. entered into force (para 73). In addition, the AG’s opinion was that any revocation would have to be in ‘good faith’ and in line with the requirement of ‘sincere cooperation’ between the Member State and the EU and. Further, although not required, it would be reasonable for the Member State to provide its reasons for revoking the Article 50 notification.’

‘Peers have hit out at the Government’s escalating use of so-called “Henry VIII powers”, describing the practice as “constitutionally objectional”. In a report the House of Lords Constitution Committee criticised the seeking of broad delegated powers that permit the determination as well as the implementation of policy, and in particular the use of such powers to create criminal offences and establish public bodies.’

‘The government should only reject peers’ advice about the use of secondary legislation to enact key parts of legislation like the Civil Liability Bill if there are “clear and compelling reasons”, the House of Lords constitution committee said today.’

‘The Northern Ireland (Executive Formation and Exercise of Functions) Bill, which arrives in the House of Lords today, is set to be enacted by way of fast-track legislative procedure this week. The Bill intends to facilitate the formation of an Executive in Northern Ireland while providing for the exercise of executive functions by civil servants in the interim. In effect, the Bill suspends the statutory duty on the Secretary of State to call a Northern Ireland Assembly election. This is little more than a continuation of the present situation in which the UK Government has kept administration in Northern Ireland ticking over since March 2017. Much more controversially, the Bill gives civil servants within Northern Ireland departments general powers for the administration of Northern Ireland, introducing a public interest test for the exercise of these powers.’

‘Over the next six months of the Brexit process, the UK Parliament will make a number of decisions that will have a profound impact on the UK’s constitution and its legal systems. In a Bingham Centre for the Rule Law Report published this week, The Withdrawal Agreement and the Political Declaration: A Preliminary Rule of Law Analysis, we argue that the next six months represents a major test for the Rule of Law in the UK.’

‘The Foreign Office records regarding the Paris Peace Conference of 1919 must be amongst the most regularly requested papers held at the National Archives. One file, FO 608/65, is part of the herculean effort to redraw the map of Europe after the First World War. It recounts the efforts of officials and ministers to work out how to provide Poland with meaningful access to the Baltic. The focus of this attention was the port city of Danzig. The two options before the Council of Ten were to include the city as part of Poland, but place limits on how Poland exercised its national sovereignty over this part of its territory, or to create a “free city”, administered by a League of Nations High Commissioner, which was tied into a customs union with Poland. In late March 1919 Lloyd George expressed the UK’s support for the former option in the Council. Behind the scenes, however, the Foreign Office was preparing the alternate plans for a free city, which Lloyd George backed to decisive effect in April 1919. Concerns that this reversal might destabilise the fledgling Polish state were summarily dismissed.’

‘The paramount anxieties that emerge from attempts to statutorising Parliament’s role in making decisions on whether to commit military action abroad has not just been to do with deferring power from the executive to the Commons, but also with the potential justiciability of such decisions. While frequent attempts to table such bills are often accompanied with assurances that these fears are misplaced, this post argues that putting Parliament’s role in deployment decisions, considered a matter of high policy, on a statutory footing could pierce the seemingly impermeable veil of non-justiciability that attend them and subject these decisions to common law review – a development that ought to be welcome.’

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